What could be more innovative than a triangular smartphone? A jury sided with Apple in a patent case in August, indicating that if Samsung wants to stay in the smartphone game it better come up with some funkier shapes. Apple’s contention was that that Samsung had misappropriated many central features of the iPhone, including – amazingly – its rectangular shape.

But let’s get real. The rectangle was not “innovative.” And an oval, triangular or pentagonal phone wouldn’t be, either. Here’s how you can tell: If a design element were truly innovative, no mere cosmetic change could prevent a lawsuit.

Intellectual property law can be written and enforced to foster future innovation, not primarily to reward past victories.

Intellectual property rights are supposed to serve as an incentive to be creative. Or, to be more precise, confidence in one’s prospect to enforce intellectual property rights is supposed to generate confidence to justify huge investments in creativity.

These investments are generally made only when there is some assurance of protection. It’s hard to imagine anyone rolling out the Madden 2014 football video game or the next Spider-Man movie without the confidence that copyright provides. And certainly a lot of important engineering and pharmaceutical research would just not happen if there were no patent system.

But as Christopher Sprigman and Kal Raustiala have demonstrated in their new book, “The Knockoff Economy,” many fields like fashion and comedy operate better without heavy regulation like intellectual property law. So do we have the right kind of systems in place? Even in fields that depend on patent or copyright protection, these laws can be too strong and enforced too aggressively. That’s when we see people rebel or work around restrictions. Worse is what we don’t see: the creativity that just never happens, out of fear.

In 1998, when Congress retroactively extended the term of copyright protection to the life of the author plus 70 years – to protect works like the Mickey Mouse film “Steamboat Willie” – it was not acting as if the purpose of copyright were to spark innovation. If anything, such an extension retarded artists who wanted to build upon or play with works made in the 1920s and 1930s. Instead, Congress just wanted to reward powerful interests that had lots of lobbying power.

Intellectual property law encourages innovation when we design and enforce it with a focus on future innovation, not a fixation on rewarding past victories. If Congress and the courts would adhere to that first principle, we could get reasonable laws that grant reasonable rights. We could have a system that most of us trust and believe in. Instead, after decades of maximal legislation, aggressive litigation and widespread moral panic, we have a system that fails in its core mission and leaves everyone unhappy.